P L D 1952 Dacca 47 (PLP)

CHOWDHURY, J.

‑These two appeals arise out of two suits, one for foreclosure of mortgage being Title Suit No. 109 of 1944 filed by the appellant as plaintiff in the Court of 4th Munsiff. Habiganj and the other is a suit for redemption of the self same mortgage, being Title Suit No. 236 of 1944 of the same Court filed by the respondent in the same Court. In the first mention ed suit, the plaintiff contended that the mortgage in question was a mortgage by conditional sale under which mortgage money became due after eight years from the date of the execution of the mortgage deed in question and he wanted a decree for foreclosure. In other suit the mortgagor wanted a redemption on a declaration that the mortgage was satisfied by the usufructs of the mortgaged properties in possession of the mortgagee under the provision of sections 8 and 9 of the Assam Money Lenders Act and also prayed for accounts against the mortgagee in possession. Both the suits were tried together both in the trial Court and in the Court of Appeal below and disposed of by one judgment in both the Courts below. Trial Court decreed both the suits in part holding that the mortgage was not a usufructuary mortgage but a mortgage by conditional sale as defined in section 58, clause (c) of the Transfer of Property Act and not a usufructuary mogtgage as defined in clause (d) of that section and that as there was no stipulation to pay interest, the mortgagee is not bound to render accounts and passed a preliminary decree in the following term "That T. S. No. 109 be decreed on contest in preliminary form and T.S. No. 236 be decreed on contest in preliminary form against defendants Nos. 1 to 3 and ex parte against the rest. Plaintiff T.S. No. 236 is hereby declared entitled to redeem the mortgage in dispute by payment of Rs. 400 to the defendants of that suit, within 90 days from the date of signing the decree, in default the defendants Nos. 1 to 3 who are plaintiffs in T. S. No. 109) will be at liberty, to ply for making the decree final and upon such application ,,ply made, the defendant of T. S. No. 109 (who is plaintiff T. S. No. 236) should be absolutely debarred and foreclosed from redeeming the said mortgage. If the amount be paid within the period specified, defendants of T. S. No.236 will be required to make over peaceful and quiet possession of the mortgaged property to the plaintiff of T. S. No. 236." Against that decision of the Trial Court, two appeals were .z by the mortgagor, the plaintiff in the redemption suit and defendant No. i in the foreclosure suit. The lower appellate Court by its judgment and decree dated the 24th August, 1945 et aside the judgment and decree of the Trial Court and both he suits (for foreclosure and redemption of the same mont age) were decreed in preliminary form and directed to take account of the legal dues of the parties under the mortgage holding that the mortgage in question read in the light of definition of interest and loan given in the Assam Money ,enders Act of 1934 and also of the definition of secured loan i the Assam Money Lenders Act as amended in 1943 is an anomalous mortgage by conditional sale and usufructuary mortgage substantially and also held that even if it be held o be a mortgage by conditional sale only, it did not fall outside the purview of the Assam Money Lenders Act and remanded the case to the Trial Court for preliminary decree ad final decree after account as directed in its judgment fence these two appeals by the mortgagee against the judg ment and decree of lower appellate Court. Mr. Tapendra Kumar Pal, the learned Advocate appear ing for the appellant, contended that the lower appellate Court Y as absolutely wrong in holding that it was an anomalous mortgage or a usufructuary mortgage coming under the mischief of Assam Money Lenders Act. His contention is that the words "return to be made over and above the principal money" in the definition of interest in section 2, sub‑clause 2 of the Assam Money Lenders Act (IV of 1934) means and refers to return to be made" at the time of redemption of the mortgage and not the amount paid already or derived out of lie usufructs of the land enjoyed by the mortgagee and, there , there cannot be any "interest" contemplated by the Act i respect of the mortgage under consideration to bring it within the purview of section 8 or section 9 of the Assam money Lenders Act as amended by amending Act of 1943 Assam Act VI of 1943 and therefore the plaintiff in the redemption suit is not entitled to any accounts as directed y the lower appellate Court. His second branch of argument is that the return as contemplated in the definition of interest is a return to be made the mortgagor and not derived from the land. In other words, Mr. Pal puts emphasis on the person who is to make over the return. His second point is that the secured loan as defined in explanation to section 8 has reference only to the amount of interest allowable under section 8 of the Assam Money Lenders Act as amended by Act of 1943 and as there is no interest stipulated and payable under the mortgage bond under consideration, it will not come under section 8 of the said Act. I am of opinion, that neither of these contentions of Mr. Pal, has got any substance. Apart from the consideration of the case under the Assam Money Lenders Act, when the deed is admitted to be a mortgage deed by both the parties, the mortgagor, the plaintiff in the redemption suit is certainly entitled to accounts under section 76 of the Transfer of Pro perty Act. At the time of accounting, the Court is to consider the question of interest but in the bond itself there is no provision as to the rate of interest and it cannot be said that in a mortgage by conditional sale as described in clause (c) of section 58 of the Transfer of Property Act, there cannot be any provision for interest as defined in section 2, subsection 2 of Assam Money Lenders Act of 1934. Interest has been defined in that Act as "Interest" means rate of interest and includes the return to be made over and above what was actually lent whether the same is charged or sought to be recovered specifically by way of interest or otherwise". In my opinion the benefit derived by the mortgagee in the shape of usufructs of the land he was put into possession on account of the mortgage by conditional sale is none the less return over and above what was actually lent. Mr. Pal's contention is, that return cannot he treated as interest within the definition, because it was " not charged or sought to be recovered specifically by way of interest". It is true that it was not described specifically as interest but the definition contains words "or otherwise" which is wide enough to included any benefit arising out of the mortgage transaction to be a "return" contemplated by the definition of interest. There fore the mortgage debt comes under section 2, subsection of the Assam Money Lenders Act of 1934 and is a loan as defined in that subsection and secured loan as explained in section 8 of the Assam Money Lenders Act as amended by the amending Act of 1943. If that be so, then whether it is an anomalous mortgage or a mortgage by conditional sale as defined in section 58 of the Transfer of Property Act it will come within the purview of sections 8 and 9 of the Assam Money Lenders Act (Amendment Act of 1943) (Act VI of 1943) and the mortgagor is entitled to relief under both the sections. The contention of Mr. Pal that " return to be made in the definition of interest in section 2, sub‑clause 2, means return to be made by the mortgagor at the time of the repayment of the loan is not correct. To accept that reading of the definition of interest, means to read something which is not in the section. In view of these interpretations of the provisions of the two Acts mentioned above, I think the lower appellate Court is quite right in holding that the mortgagor is entitled to relief under sections 8 and 9 of the Assam Money Lenders Act as amended by the amended Act of 1943 and account is to be taken to determine the right and the liability of the mort gagor and the mortgagee, i.e., legal dues of the parties. I, therefore, dismiss both the appeals, S. A. No. 548 of 1946 with costs and S. A. No. 547 of 1945 without costs as the respondent has not appeared in that appeal. Records of the appeals may be sent down without delay. K. M. A.